On the face of it, the laws around employees’ and employers’ respective rights and responsibilities when it comes to sick leave might look cut and dried – the reality, though, is anything but.

We’ve all heard the case of the worker struck down by supposed end-of-weekend gastro, only to be outed on social media as having a crippling case of Mondayitis. Then, there’s the employer who summarily sacks a worker, sick to the back teeth of the countless days off they’ve had off unwell. Yes, the scenarios are many and varied – and the law sometimes doesn’t always fall where you might assume.

For employers, no matter how much evidence you’ve got an employee’s pulled a “sickie”, get the investigation and disciplinary process wrong, and it could very well be your business, and not the wayward worker, who’s in the firing line legally. Put the shoe on the other foot, though, and employees need to remember taking a sick day when you’re fine and dandy isn’t just dubious, it actually likely constitutes a breach of your contractual obligations – and that can have serious, and expensive, ramifications.

Basic provisions

Understanding the basic leave provisions allowed for in law is a solid place for both parties to start. Because these are minimum statutory requirements that apply whether they’re in writing or not, technically the details don’t need to be documented in employment agreements – but doing so is standard practice, and ensures that everyone is crystal clear.

So, what are the key, minimum entitlements?

  • After six months of continuous employment, employees qualify for five days’ paid sick leave for each subsequent 12-month period. Where work has not been continuous for the six-month period, an employee qualifies for sick leave if they have worked, over a period of six months, an average of 10 hours per week and no less than one hour in every week during that period, or no less than 40 hours in every month during that period.
  • As well as illness, the leave can be used, in some cases, for injury.
  • Unused sick leave – up to 15 days – carries over to the next 12-month period, up to a maximum of 20 days’ current entitlement in any one year. Sick leave can be legitimately used, too, in instances where people who rely on the worker for care are unwell or hurt – for example, children or a spouse/partner.

Remember, these provisions are statutory minimums. Employers can, and often do, offer more generous allowances, the specifics of which are outlined in employment agreements, or documented in the workplace’s policies.

As an employer, if you think someone’s taking liberties with their sick leave, make sure your suspicions are pretty well-founded. You’re entitled to request a medical certificate as proof if the employee’s been sick or injured for three consecutive days or more – and, note, they don’t all have to be work days. If you cover the cost, you can ask for that proof sooner. But, do bear in mind, asking for a medical certificate tends to imply suspicion, and might not be the best for workplace relations – especially if the staff member is ultimately found to be genuinely poorly.

Test your thinking, and the reliability of the information from the outset, and certainly before launching any investigation. In cases where an employee won’t or can’t produce proof, however, you don’t have to pay them. At this stage, though, it’s a wise move to take legal advice before going any further.

Due process

If you suspect a worker’s pulling a sickie and you don’t already have a process in place, put a quick call in to your lawyer and have them set out the correct steps. If you’re convinced there’s a problem, you can move onto the “reasonable inquiry” phase, which means raising the concern with the employee and giving them a genuine chance to respond. It’s vital that you don’t pre-determine the outcome. If matters aren’t resolved, the next step is a more formal investigation, and, potentially, disciplinary action if the investigation establishes wrong-doing. It’s critical that your business gets advice from a lawyer as you work through those processes. If you get it wrong, you could be a sitting duck for a personal grievance.

Another common challenge around sick leave is when workers exhaust their entitlement with legitimate illnesses or injuries. Employees can ask to take further time as unpaid or annual leave. This isn’t available as of right; it’s at the employer’s discretion. There are no hard and fast rules, so employers who find themselves dealing with this type of situation should contact their legal adviser as soon as it looks like it is becoming an issue. Again, put a foot wrong, even innocently, and you could easily be stepping into personal grievance territory.

Remember, too, injuries should sometimes be treated differently than illness. Employees don’t need to take sick leave to recover from a workplace injury. After the accident’s registered with, and acknowledged by, ACC, an employer must pay the hurt worker 80 percent of their usual wages for the first week, before ACC payments kick in.

There can be other payment and leave considerations when a worker is injured, as opposed to being unwell. Be sure to look into these carefully, if faced with an injury situation, whether it happened in the workplace or not.

DIY disasters

Increasingly, we’re seeing employers arriving in our offices with problems, having relied on employment agreements they’ve drawn up themselves, or, alternatively, cobbled together using templates from the internet.

In a word: don’t.

By all means, conduct your own research and draft up what you think covers your needs, but always, always have it checked by a lawyer before presenting it to a worker. Not only is employment law filled with countless variables, it’s also constantly changing. Any benefit of the doubt tends to be weighted toward the more vulnerable party: the employee. So, if your paperwork and processes aren’t up to scratch, disgruntled workers can present a significant risk to your business’ bottom line – and its reputation.

It’s best, if you can, to take legal advice for every new hire. If that’s not possible, at least have your lawyer draw up a template to fit your business and use that, but be sure to have it regularly checked by your legal adviser. Another non-negotiable is ensuring you encourage a prospective employee to take independent legal advice before signing an employment agreement, and that this is documented.

By way of reality check, the Employment Relations Authority (ERA) awards for compensation are on the up all of the time. It’s not unheard of for an employee to be awarded $20,000 in compensation for hurt, humiliation and distress in situations such as where an investigation process hasn’t been conducted fairly, an employee has been dismissed without proper process, or an employee’s hours have been reduced, to name but a few. Where an employee’s contract is terminated, or even effectively terminated by the employer’s actions, an employer will also have to pay a minimum of three months’ lost wages as well.

Add penalties for other breaches, the employee’s legal fees, and your own, and, suddenly, your business is taking a pretty big hit.

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